Springhouse Solicitors

Ban on Islamic head scarf: direct discrimination

The Advocate General of the European Court of Justice has recently considered a case in France, where there was a blanket prohibition on Islamic head scarves in a company. This was found to be direct discrimination, and further, because it was a blanket ban on the Hijab, it could not be justified in this case.

Background

The Respondent in this case, Micropole SA, had received a complaint because the Claimant (Ms Bougnaoui) had served a customer whilst wearing the Hijab. The customer had insisted that the Hijab be removed in future. Micropole passed this request on to Ms Bougnaoui, who refused. She was subsequently dismissed.

Micropole tried to defend the claim on 3 grounds:

Implications

This case appears to be at odds with cases we have previously reported on, Achbita and Eweida. The apparent contradiction means that these cases need to be looked at very carefully before disciplinary decisions are made.

Perhaps the most alarming feature of the case for employers is the finding of direct discrimination. This would appear to considerably widen the circumstances in which there is direct discrimination, leaving employers with no legal defence.

The Advocate General’s suggestions as to what might not be direct discrimination are therefore very relevant. The Advocate General recommended that, in order to avoid direct discrimination, prohibitions need to be completely neutral, not targeting religious items but also other, secular manifestations, such as football strips and old school ties.